Citation Nr: 0031963
Decision Date: 12/07/00 Archive Date: 12/12/00
DOCKET NO. 97-00 302 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUES
1. The propriety of the initial 50 rating assigned for the
veteran's service-connected post-traumatic stress disorder
(PTSD).
2. Entitlement to an increased rating for shrapnel wound of
the left forearm with retained foreign body, currently rated
as 10 percent disabling.
3. Entitlement to an increased rating for ulnar nerve
entrapment, left, currently rated as 10 percent disabling.
4. Entitlement to an increased (compensable) rating for
residuals of a shell fragment wound to the right axilla.
5. Entitlement to an increased (compensable) rating for
intra-orbital foreign body, temporal base.
REPRESENTATION
Appellant represented by: New York Division of Veterans'
Affairs
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Counsel
INTRODUCTION
The veteran had active service from April 1968 to April 1970
and from May 1971 to December 1974.
This case is before the Board of Veterans' Appeals (Board) on
appeal from April 1995 and July 1997 rating decisions by the
New York, New York Regional Office (RO) of the Department of
Veterans Affairs (VA). In July 2000, the veteran testified
at a personal hearing before the undersigned Veterans Law
Judge at the RO.
As is reflected below, the issue of whether the veteran's
PTSD warrants a rating higher than 50 percent, for the period
beginning November 7, 1996, is addressed in the REMAND
portion of this decision.
FINDINGS OF FACT
1. Prior to November 7, 1996, the medical evidence did not
show that the veteran's PTSD caused his ability to establish
or maintain effective or favorable relationships with people
to be severely impaired and that his psychoneurotic symptoms
were of such severity and persistence that there was severe
impairment in the ability to obtain or retain employment.
2. The veteran's shrapnel wound of the left forearm with
retained foreign body results in scarring which is tender and
painful, but does not cause loss of grip strength, anatomical
defects, or functional defects (not related to nerve injury)
to include any motor loss.
3. The veteran's left ulnar nerve entrapment is incomplete
and mild in degree of severity.
CONCLUSIONS OF LAW
1. The assignment of the initial 50 percent rating for
service-connected PTSD from April 14, 1994 to November 6,
1996 was proper as the criteria for a higher evaluation had
not been met for that time period. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.7, 4.129, 4.130, 4.132,
Diagnostic Code 9411 (regulations in effect prior to November
7, 1996).
2. The criteria for a rating in excess of 10 percent for
residuals of shrapnel wound of the left forearm with retained
foreign body have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804
(2000).
3. The criteria for a rating in excess of 10 percent for
left ulnar nerve entrapment have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.124a,
Diagnostic Code 8516 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Higher Ratings
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
the VA's Schedule for Rating Disabilities (Rating Schedule),
which is based on average impairment in earning capacity. 38
U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as
to which of two ratings apply under a particular diagnostic
code, the higher evaluation is assigned if the disability
more closely approximates the criteria for the higher rating.
38 C.F.R. § 4.7. After careful consideration of the
evidence, any reasonable doubt remaining is resolved in favor
of the veteran. 38 C.F.R. § 4.3. The veteran's entire
history is reviewed when making disability evaluations. See
generally, 38 C.F.R. 4.1 (2000); Schafrath v. Derwinski, 1
Vet. App. 589 (1995).
PTSD
In April 1994, the veteran filed a claim for service
connection for PTSD. In conjunction with his claim, he was
afforded a VA PTSD examination in June 1994. At that time,
the veteran reported having dreams and nightmares of combat
occurring almost weekly. He reported having an increased
startle response and indicated that he often overreacts to
things when they occur. He related that certain noises,
smells, and situations bring back memories of Vietnam. The
veteran related that he was married to his second wife and
felt that things were going better. He reported that he was
employed as a police officer, but planned to retire within a
year. Mental status examination revealed a somber, depressed
appearing, hypervigilant individual who, at times, was
irritated during the evaluation. There was no evidence of
hallucinations, delusions, or other psychotic phenomena. His
mood and affect varied from irritability to overt anger at
times to irritation to hypervigilance. The veteran admitted
to depressive ideation, but denied suicidal ideation. Recent
and remote memory were grossly intact and recent memory was
impaired by depression. Insight was fair and judgment was
good. In summary, the examiner indicated that the veteran
presented with signs and symptoms consistent with PTSD
according to American Psychiatric Association's Diagnostic
and Statistical Manual for Mental Disorders, third edition,
(DSM-III-R) and formed the criteria for it. The diagnosis
was PTSD, moderately severe. Global Assessment of
Functioning (GAF) was 42.
Subsequent VA outpatient records show treatment in the mental
hygiene clinic by a psychologist for PTSD during the period
from August 1994 until May 1995. Most of the notes concerned
the veteran's recollections of his military experiences and
the difficulties he was having with his step-children. It
was noted that the veteran explained that he did not have a
good relationship with his superior at work. These records
do not reflect that any medication was prescribed.
In an April 1995 rating decision, service connection was
granted for PTSD and a 30 percent rating was assigned
effective from April 1994. The veteran appealed that
determination.
In April 1997, the veteran testified at a personal hearing
before a hearing officer. At that time, he indicated that he
had been employed as a police officer for 23 years, but was
planning to retire due to his inability to tolerate other
people and due to his temper. He further indicated that he
suffered from sleep problems to include nightmares, anxiety,
and survival guilt. He related that he was married to his
second wife, but had some family problems because he was
critical of his wife and children. He further indicated that
he suffered from depression.
In April 1997, a letter was received from the veteran's wife.
In this letter, she indicated that the veteran had sleep
problems. She related that he could not sleep for long
periods or during the night hours. She also indicated that
he had nightmares and slept fitfully. In addition, he would
wake in a violent manner. In addition, she related that the
veteran felt the need to be in control of his environment and
had threatened violence. She stated that the veteran was not
of assistance to her around the house. Also, she related
that his short term memory had been poor. His wife stated
that he could be disagreeable and that the type of weather
outside affected his mood swings. Finally, she related that
the veteran was primarily a "loner."
In May 1997, the veteran was afforded another PTSD
examination. At that time, the veteran reported having
essentially the same symptoms as he had on the last
examination. In addition, he related that he still had not
retired from the police force, but was considering retirement
due to his becoming more concerned about his propensity for
violence. He indicated that he had become more brutal with
the prisoners. In addition, he related that he had an
increase in insomnia, was persistently checking the perimeter
of his home, and had decreased tolerance for everything in
civilian life as well as police life. The veteran related
that he tried to block things out and to avoid people. He
admitted to fantasizing about violence during the day when he
was a policeman. Mental status examination revealed a
depressed appearing hypervigilant and agitated individual.
There was no evidence of hallucinations, delusions, or
psychosis. His mood and affect varied from overt anger to
irritability to irritation. He admitted to depressive
ideation and admitted to some fleeting suicidal ideation.
Recent and remote memory were impaired by his depression.
Recent memory showed a moderate impairment and remote memory
showed little impairment. Insight was fair and judgment was
fair. In summary, the examiner indicated that the veteran
continued to present with the signs and symptoms of PTSD from
DSM-IV. He showed some escalation of these signs and
symptoms. The diagnosis was PTSD. GAF was 48.
In a July 1997 rating decision, the veteran's disability
rating for his PTSD was increased to 50 percent effective
April 1994, the effective date of service connection.
In July 2000, the veteran testified at a personal hearing
before the undersigned Veterans Law Judge at the RO. At that
time, the veteran related that, prior to his retirement, in
early 1998, from the police force, he had been having
difficulty at work because he did not want to tell his
supervisor that he was receiving psychiatric treatment. In
addition, he related that he felt that he was becoming too
physical with criminals. The veteran related that he only
felt safe when he was in possession of a weapon. In
addition, the veteran related that he primarily socialized
with other veterans, although he did not socialize as much as
he used to socialize. The veteran indicated that he still
suffered from the same types of sleep problems as he had
suffered from on prior occasions. The veteran related that
he was currently working part-time and enjoyed his work. He
indicated that he preferred to be working than to be at home.
The veteran indicated that he took no medication for his
psychiatric symptoms, nor had he resumed therapy or other
treatment.
In July 2000, the veteran's wife sent in another letter. She
related the veteran's various work problems and his
reluctance to be forthcoming with his supervisor and she also
confirmed his current part-time work with the Sheriff's
Department. The veteran's wife essentially indicated that
the veteran still had the same problems as he had previously
had.
Before proceeding with its analysis of the veteran's claim,
the Board finds that some discussion of the Fenderson v.
West, 12 Vet. App 119 (1999) case is warranted. In that
case, the United States Court of Appeals for Veterans Claims
(known as the United States Court of Veterans Appeals prior
to March 1, 1999) (hereinafter, "the Court") emphasized the
distinction between a new claim for an increased evaluation
of a service-connected disability and a case (such as this
one) in which the veteran expresses dissatisfaction with the
assignment of an initial disability evaluation where the
disability in question has just been recognized as service-
connected. In Francisco v. Brown, 7 Vet. App. 55, 58 (1994),
the Court held that the current level of disability is of
primary importance when assessing an increased rating claim.
However, in cases such as this one, the Francisco rule does
not apply; rather, VA must assess the level of disability
from the date of initial application for service connection
and determine whether the level of disability warrants the
assignment of different disability ratings at different times
over the life of the claim-a practice known as "staged
rating."
In this case, the RO has not issued a statement of the case
and/or a supplemental statement of the case that explicitly
reflect consideration of the propriety of the initial rating,
or included a discussion of whether "staged rating" would
be appropriate in the veteran's case. However, the Board
does not consider it necessary to remand this claim to the RO
for issuance of a statement of the case on this issue. This
is because the claims file reflects consideration of
additional evidence in light of the applicable rating
criteria at various points during the appeal. Thus, the RO
effectively considered the appropriateness of its initial
evaluation under the applicable rating criteria in
conjunction with the submission of additional evidence at
various times during the pendency of the appeal. The Board
considers this to be tantamount to a determination of whether
"staged rating" was appropriate; thus, the Board finds that
a remand of the case would not be productive, as it would not
produce a markedly different analysis on the RO's part, or
give rise to markedly different arguments on the veteran's
part.
The veteran has been rated under Diagnostic Code 9411 which
governs ratings for PTSD. The Board notes that during the
pendency of the veteran's appeal, a revised rating schedule
for mental disabilities became effective on November 7, 1996.
Where laws or regulations change after a claim has been filed
or reopened, but before the administrative or judicial appeal
process has been concluded, the version most favorable to the
veteran applies, absent Congressional or Secretarial intent
to the contrary. See Dudnick v. Brown, 10 Vet. App. 79
(1997); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991).
If the revised version of the regulation is more favorable,
the retroactive reach of that regulation under 38 U.S.C.A.
§ 5110(g) can be no earlier than the effective date of that
change. See VAOPGCPREC 3-2000 (2000). Therefore, the Board
must evaluate the veteran's claim for a higher rating for
PTSD under both the former applicable criteria and the
revised applicable criteria in the rating schedule, and apply
the more favorable result, if any. Because the veteran has
not undergone VA examination for several years, and there
have been made assertions that his psychiatric condition has
deteriorated, the Board will consider, at this time, only the
proper rating warranted for PTSD during the period prior to
November 7, 1996, under the applicable criteria then in
effect. The issue of a rating higher than 50 percent for the
period beginning November 7, 1996, will be addressed in the
REMAND portion of this decision below.
A 50 percent rating under the old version of Diagnostic Code
9411 is warranted for psychiatric disability in which the
ability to establish or maintain effective or favorable
relationships with people is considerably impaired; and in
which by reason of psychoneurotic symptoms the reliability,
flexibility and efficiency levels are so reduced as to result
in considerable industrial impairment. A 70 percent rating
is warranted under the old version of Diagnostic Code 9411
where the ability to establish or maintain effective or
favorable relationships with people is severely impaired; and
when the psychoneurotic symptoms are of such severity and
persistence that there is severe impairment in the ability to
obtain or retain employment. The old formula of Diagnostic
Code 9411 provides a 100 percent rating for psychiatric
disability in which: 1) the attitudes of all contacts except
the most intimate are so adversely affected as to result in
virtual isolation in the community; 2) when there are totally
incapacitating psychoneurotic symptoms bordering on gross
repudiation of reality with disturbed thought or behavioral
processes associated with almost all daily activities such as
fantasy, confusion, panic and explosions of aggressive energy
resulting in profound retreat from mature behavior; or 3)
when the veteran is demonstrably unable to obtain or retain
employment. The Court has held that the Secretary's
interpretation that the three criteria set forth in
Diagnostic Code 9411 are each independent bases for granting
100 percent, is reasonable and not in conflict with any
statutory mandate, policy, or purpose. Johnson v. Brown, 7
Vet. App. 95 (1994).
Prior to November 7, 1996, in order to warrant assignment of
the next higher rating of 70 percent, the medical evidence
would have to show that the veteran's PTSD caused the
veteran's ability to establish or maintain effective or
favorable relationships with people to be severely impaired
and that his psychoneurotic symptoms were of such severity
and persistence that there was severe impairment in the
ability to obtain or retain employment. A review of the
evidence does not show that the criteria for a 70 percent
rating was met. The veteran was employed on a full time
basis as a police officer. Although he was having difficulty
with his supervisor, this was due to reluctance to tell the
supervisor of his medical treatment and evaluation for PTSD,
as well as due to other non-related factors. While the
veteran reported having difficulty controlling his temper on
the job, his ability to perform his job was not severely
impaired as he was able to retain his full-time employment.
In addition, his relationships with others were not severely
impaired as he was able to maintain relationships with his
family and select friends. He received only sporadic
treatment with a psychologist, and was neither prescribed nor
used any medication.
Although careful consideration has been given to the
testimony of the veteran and the submissions from his spouse,
the preponderance of the evidence does not support a finding
of severe social or industrial impairment, during the period
prior to November 7, 1996.
Residuals of Shrapnel Wound of the Left Forearm to Include
Ulnar Nerve Entrapment
In April 1994, the veteran applied for an increased rating
for service-connected shrapnel wound of the left forearm with
retained foreign body. In June 1994, he was afforded a VA
muscles examination. With regard to the left upper
extremity, the veteran complained that he had numbness in the
4th and 5th fingers whenever his arm is rested down against a
hard surface. In addition, he reported having spasmodic
jerking of the 4th and 5th fingers. The examiner noted that
the extensor muscle of his left forearm had been penetrated,
but there was no scar present, there were no adhesions, and
there was no damage to tendons. The examiner further noted
that the veteran had no damage to the joints or the bones,
but did have decreased pinprick sensation on the 4th and 5th
volar fingers extending up into the ulnar side of the palm.
Extensor and flexor strength of the wrists was normal. The
grasp was normal, with his right being stronger than his
left. X-rays of the left elbow were normal. X-rays of the
left arm revealed minute metallic densities in the left
proximal forearm was consistent with shrapnel.
A June 1994 hand examination revealed no anatomical or
functional defect. The veteran's grasping of the left hand
was noted to be normal. Although the veteran's right hand
was noted to be stronger than his left hand, it was indicated
that he was right-handed and total strength was approximately
normal. Neurological examination of the fingers showed that
the veteran had soft touch sensation in all fingers. He had
hard touch sensation in all fingers. He was lacking a
pinprick sensation on the 4th and 5th fingers of both hands
extending up into the ulnar portion of the palm. Nerve
conduction studies and an electromyography (EMG) testing of
the ulnar nerves were conducted. The diagnosis was "rule
out nerve entrapment syndrome."
In an April 1995 rating decision, entitlement to an increased
rating for residuals of shrapnel wound of the left forearm
with retained foreign body was denied. The veteran appealed
that determination. In April 1997, the veteran testified at
a personal hearing before a hearing officer at the RO. At
that time, the veteran related that his little and ring
fingers on his left hand and the palm portion underneath
those two fingers down to the wrist were constantly tingling
and numb. The veteran also described having pain in the area
of the shrapnel wound around the ulnar bone. In addition, he
related having spasms in those same two fingers.
In May 1997, the veteran was afforded a VA scar examination.
Physical examination revealed a scar on the posterior aspect
of the left forearm just below the elbow which measured .25
inches by .75 inches, was slightly depressed, and was
slightly tender.
In May 1997, the veteran was also afforded a VA peripheral
nerve examination. Physical examination reveled that the
veteran's deep tendon reflexes were depressed, but equal.
There was no evidence of motor loss. Strength and grip were
good. Decreased sensation to pinprick was noted over the 4th
and 5th fingers extending to the level of the elbow. The
diagnosis was probable mild ulnar nerve entrapment at the
left elbow, probably secondary to shell fragment wound.
Ina July 1997 rating decision, the RO granted an increased
rating for residuals of shrapnel wound to the left forearm by
granting service connection for ulnar nerve entrapment and
assigning a 10 percent rating for that disability.
In October 1997, the veteran underwent examinations by
private physicians.
The veteran was first examined by Sowbhagya L. Sonthineni,
M.D., who noted that the veteran was complaining of numbness
of his left little and right fingers extending onto the palm
on the left side. Also, it was noted that the veteran
complained of pain and tingling over the dorsal aspect of the
forearm just below the elbow. Physical examination revealed
that the veteran was right handed. Examination of the motor
system revealed mild weakness of the left abductor digital
quinti. There was no other focal weakness. There was no
change in tone or atrophy and no other involuntary movements
were noted. Examination of the sensory system revealed that
sensory perception to pinprick was decreased over the little
and ring fingers on the left hand extending onto the palm and
up to the wrist. There were no other sensory deficits noted
to pinprick, vibration, or touch. Tinel's sign was positive.
Deep tendon reflexes were in the range of 2/4 and
symmetrical. Cerebellar testing showed that finger to nose
and heel to shin were performed without dysmetria. Romberg
test was normal. The impression was ulnar nerve compression
neuropathy and status post shrapnel wounds.
On October 4, 1997, the veteran was examined by Albert B.
Kochersperger, M.D., P.C.. At that time, the veteran
indicated that he had a feeling of constant tingling in his
4th and 5th left fingers as well as on the ulnar aspect of the
left palm. The veteran complained of discomfort to increase
if he was driving or gripping. He indicated that he had
symptoms of tenderness and pain in the proximal 4th of the
left ulna which was worse if he leaned onto a firm surface.
He also reported pain and an increase in the tingling in the
4th and 5th fingers. Physical examination revealed that the
veteran was right hand dominant. He had grip strength of 95
pounds force right and 94 pounds force left. His biceps
reflexes and brachioradialis reflexes were equal at plus two.
His triceps reflexes were two plus on the right and one plus
on the left. His upper arm circumferences were equal. His
forearm circumference was 1/2 centimeter greater on the
right. He had decreased sensation to light touch in the
ulnar nerve distribution from the wrist distally. He had
good power of finger abduction bilaterally and did not have
fatigue when this was held for 15 to 20 seconds. He had
several small well-healed scars over the proximal 4th of the
left ulna, some of which were tender with palpation,
especially in the areas immediately overlying the
subcutaneous bony aspect of the proximal ulna. There was no
evidence of clawing or atrophy. There was no weakness of the
left thumb or wrist. There was no tenderness of the
olecranon or medial or lateral epicondyles of the left elbow.
Palpation over several areas of shrapnel did cause
paresthesias in the 4th and 5th fingers of the left hand. The
diagnosis was shrapnel wounds proximal left forearm in the
region of the proximal 4th of the ulna with compression of
some fibers of the left ulnar nerve. The physician indicated
that there was incomplete involvement of the ulnar nerve and
that the impairment was mild.
Dr. Sonthineni examined the veteran again on October 23, 997.
At that time, it was noted that the veteran had a long
history of pain over the left forearm below the elbow as well
as little and ring finger numbness. It was noted that the
symptoms started following shrapnel injury to the forearm and
that the veteran had a pins and needles sensation.
Examination revealed that the veteran had weakness of the
abducto pollices brevis and abductor digital quinti on the
left. The veteran had decreased sensory perception over the
little and right fingers on the left. Palpation of the ulnar
nerve at the elbow caused hyperesthesia. Deep tendon
reflexes were in the range of two and were symmetrical. It
was noted that EMG and nerve conduction testing showed
evidence for slow conduction velocity of the ulnar nerve
across the elbow on the left. Also, the veteran had axon
degeneration with denervation potentials in abductor digital
quinti and first dorsal interosseous muscles as well as
flexor carpi ulnaris. The diagnosis was shrapnel injury with
left ulnar nerve injury with axonal degeneration. In a
subsequent July 1999 letter, the physician reiterated the
findings indicated on the prior examination and he indicated
that the ulnar nerve entrapment was related to the inservice
shrapnel wound.
In July 2000, the veteran testified at a personal hearing at
the RO before the undersigned Veterans Law Judge. At that
time, the veteran reiterated the complaints he had made
regarding his left upper extremity to his private physician.
The veteran also indicated that he had trouble fastening
buttons and engaging in some activities, such as using a bow
and arrow. He indicated that he had pain in his left arm
which sometimes woke him up at night. He related that used
anti-inflammatory medication.
While a review of the recorded history of a disability should
be conducted in order to make a more accurate evaluation, the
regulations do not give past medical reports precedence over
current findings. Francisco. Thus, where entitlement to
compensation has already been established and an increase in
disability rating is at issue, the present level of
disability is of primary concern. Therefore, although the
Board has thoroughly reviewed all medical evidence of record,
the Board will focus primarily on the most recent medical
findings regarding the current level of the veteran's
service-connected residuals of shrapnel wound to the left
upper extremity.
Evaluation of increased rating claims also requires
consideration of the provisions of 38 C.F.R. §§ 4.40, 4.45,
where applicable. Under 38 C.F.R. § 4.40, functional loss
due to pain and weakness supported by adequate pathology and
evidenced by the visible behavior of the appellant is deemed
a serious disability. subsume 38 C.F.R. § 4.40
or 38 C.F.R. § 4.45. It was also held that the provisions of
38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid
consideration of a higher rating based on greater limitation
of motion due to pain on use, including during flare-ups.
Therefore, when evaluating musculoskeletal disabilities, VA
may, in addition to applying schedular criteria, consider
granting a higher rating in cases in which functional loss
due to limited or excess movement, pain, weakness, excess
fatigability, or incoordination is demonstrated, and those
factors are not contemplated in the relevant rating criteria.
See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at
204-7 (1995). However, in that regard, the Board notes that
the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45,
should only be considered in conjunction with the Diagnostic
Codes predicated on limitation of motion. Johnson v. Brown,
9 Vet. App. 7 (1996).
Pursuant to Esteban v. Brown, 6 Vet. App. 259 (1994),
separate manifestations of the same disability may be rated
individually if none of the symptomatology for any one of the
conditions is duplicative of or overlapping the
symptomatology of the other conditions. Pertinent to this
case, the veteran sustained shrapnel wound to the left upper
extremity. In this case, consideration must be given to
whether there is muscle injury, nerve injury, and/or scarring
due to the shrapnel wound.
Finally, the Board notes that the rating criteria for muscle
injuries were revised, effective July 3, 1997, during the
pendency of the veteran's appeal. Where the law or
regulation changes after a claim has been filed or reopened
but before the administrative or judicial process has been
concluded, the version most favorable to the appellant
applies, absent contrary intent. Karnas v. Derwinski, 1 Vet.
App. 308 (1990). . This ordinarily would require that the
claim be remanded to the RO if the RO had not considered such
changes, to avoid the veteran being unduly prejudiced, but
since there were no substantive changes in the rating
criteria (in fact, the language and content are virtually the
same, just reorganized differently), neither version of the
criteria--new or old--is "more favorable" to him, and the
Board may proceed with the adjudication of this issue. See
Bernard v. Brown, 4 Vet. App. 384, 392-93 (1993). In fact, a
review of the medical evidence shows that while the veteran
sustained penetration from the shrapnel to the extensor
muscle of his left forearm, he does not have any residual
muscle injury to his left upper extremity due to shrapnel
wound. There is no tissue loss, adhesions, damage to
tendons, damage to the bones or joints, loss of grip
strength, anatomical defects, or functional defects (not
related to nerve injury) to include any motor loss. Thus, a
rating based on residual muscle injury is not warranted.
With regard to scarring, the veteran is currently receiving a
10 percent rating for scarring on the left forearm under
Diagnostic Code 7804.
The Board notes that the VA rating schedule provides ratings
under several Diagnostic Codes for scarring of the skin.
Disfiguring scars of the head, face and neck are rated under
Diagnostic Code 7800. Scars from burns are rated under
Diagnostic Codes 7801-7802. Scars which are superficial,
poorly nourished, with repeated ulceration are rated under
Diagnostic Code 7803. Scars which are superficial, tender
and painful on objective demonstration are rated as 10
percent disabling under Diagnostic Code 7804.
Under Diagnostic Code 7805, other scars are rated based on
the limitation of function of the part affected. Under
Diagnostic Code 5201, the rating schedule provides a 20
percent rating when there is limitation of the minor arm to
shoulder level; a 20 percent rating when there is limitation
of the minor arm to midway between side and shoulder level;
and a 30 percent rating when there is limitation of the minor
arm to 25 degrees from the side. 38 C.F.R. Part 4,
Diagnostic Code 5201.
In this case, Diagnostic Codes 7800-7803 are inapplicable.
The veteran is currently receiving the maximum rating under
Diagnostic Code 7804 based on the fact that he has scarring
on the posterior aspect of the left forearm which is slightly
depressed and tender. In order for a higher rating to be
warranted, the scarring would have to be productive of
limitation of function of the left forearm/elbow. In this
case, there is no such limitation of function. As noted,
there is no loss of grip strength, anatomical defects, or
functional defects (not related to nerve injury) to include
any motor loss. Thus, a higher rating for the veteran's
residuals scarring of the left forearm due to shrapnel wound
is not warranted. Likewise, since the veteran does not have
any limitation of motion due to his shrapnel wound, the
directives of DeLuca are not for application in this case.
Johnson.
With regard to the veteran's left ulnar nerve entrapment, he
has been receiving a 10 percent rating under Diagnostic Code
8516. Under this diagnostic code, the rating schedule
provides, for paralysis of the ulnar nerve, a 60 percent
disability rating for complete paralysis in the major
extremity, and a 50 percent rating for the minor extremity,
characterized as the "griffin claw" deformity, due to flexor
contraction of the ring and little fingers, very marked
atrophy in the dorsal interspace and the thenar and
hypothenar eminences; the loss of extension of the ring and
little fingers, the inability to spread the fingers (or
reverse), the inability to adduct the thumb; flexion of the
wrist weakened. If paralysis is incomplete, a 10 percent
disability rating applies for mild residuals in either
extremity; a 30 percent rating for moderate residuals in the
major extremity (20 percent if minor); and a 40 percent
rating for severe residuals in the major extremity (30
percent if minor). 38 C.F.R. § 4.124a.
Entitlement to a disability rating in excess of 10 percent
under Diagnostic Code 8516 requires evidence showing that the
neurological impairment is moderate. When the manifestations
of the neurological impairment are wholly sensory, the rating
should be for mild incomplete paralysis, which warrants a 10
percent rating under Diagnostic Code 8516. 38 C.F.R. §
4.124a. In this case, the left hand symptoms are not wholly
sensory as some weakness of the left abductor digital quinti
was noted by Dr. Sonthineni. However, Dr. Kochersperger
indicated in October 1997 that there was incomplete
involvement of the ulnar nerve and that the impairment was
mild. There was no evidence of clawing, atrophy, or weakness
of the wrist. These findings are consistent with the prior
May 1997 VA examination which basically only showed sensory
impairment as well as by Dr. Sonthineni's examinations which
only showed, other than the weakness of the left abductor
digital quinti, sensory impairment. Overall, the veteran's
disability level more nearly approximates the mild level
rather than the moderate level.
Accordingly, the Board finds that the criteria for a
disability rating in excess of 10 percent under Diagnostic
Code 8516 have not been met.
For the foregoing reasons, the Board must conclude that the
preponderance of the evidence is against an evaluation in
excess of 10 percent for the veteran's shrapnel wound of the
left forearm with retained foreign body and for ulnar nerve
entrapment and that the claims must be denied. See
38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1
Vet. App. 49, 55-57 (1991).
ORDER
A rating in excess of 50 percent for PTSD is not warranted
for the period from April 14, 1994 through November 6, 1996.
A rating in excess of 10 percent for residuals of shrapnel
wound of the left forearm with retained foreign body is not
warranted.
A rating in excess of 10 percent for left ulnar nerve
entrapment is not warranted.
REMAND
During his July 2000 personal hearing, the veteran and his
representative made certain assertions regarding his service-
connected right axilla disability and his service-connected
residuals, intra-orbital foreign body, temporal base. In
sum, these allegations need to be resolved by further VA
examination as the medical evidence of record predates these
allegations and does not entirely substantiate the new
assertions.
Specifically, the veteran and his representative maintain
that his service-connected right axilla disability is
productive of neurological symptomatology. They assert that
due to these symptoms a higher rating is warranted. A review
of the medical evidence shows that some neurological
symptomatology was noted on a June 1994 VA examination and on
private October 1997 examinations. However, no specific
diagnosis of neurological impairment of the right upper
extremity was rendered.
In addition, the veteran and his representative maintain that
his service-connected residuals, intra-orbital foreign body,
temporal base, cause the veteran to have a gritty feeling in
his eye, as if some object was located in his eye. Also, it
was asserted that this eye disability results in headaches
and blurred vision. A review of the medical evidence shows
that, upon the most recent private examination conducted in
October 1997, the veteran did not complain of any symptoms.
Argument has also been advanced to the effect that the
veteran's PTSD has become more symptomatic in recent years.
The veteran was last examined in 1997. An up-to-date
examination would be beneficial, prior to appellate review.
Moreover, the Board notes that recently enacted legislation,
the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (to be codified at 38 U.S.C. § 5100, et
seq.), substantially revised certain statutory provisions
regarding the assistance that VA must provide to claimants
for VA benefits and the notice that VA must provide to
claimants as to the type of evidence that is necessary to
substantiate his claim.
Accordingly, the Board finds that the veteran should be
afforded a VA examination to include psychiatric, orthopedic,
neurological, and visual evaluations.
The veteran is herein advised that, in keeping with the VA's
duty to assist, as announced in Connolly v. Derwinski, 1 Vet.
App. 566, 569 (1991), at least in part the purpose of the
examination requested in this remand is to obtain information
or evidence (or both) which may be dispositive of the appeal.
Sec. 3.655 Failure to report for
Department of Veterans Affairs
examination.
(a) General. When entitlement or
continued entitlement to a benefit cannot
be established or confirmed without a
current VA examination or reexamination
and a claimant, without good cause, fails
to report for such examination, or
reexamination, action shall be taken in
accordance with paragraph (b) or (c) of
this section as appropriate. Examples of
good cause include, but are not limited
to, the illness or hospitalization of the
claimant, death of an immediate family
member, etc. For purposes of this
section, the terms examination and
reexamination include periods of hospital
observation when required by VA.
(b) Original or reopened claim, or claim
for increase. When a claimant fails to
report for an examination scheduled in
conjunction with an original compensation
claim, the claim shall be rated based on
the evidence of record. When the
examination was scheduled in conjunction
with any other original claim, a reopened
claim for a benefit which was previously
disallowed, or a claim for increase, the
claim shall be denied. 38 C.F.R. § 3.655
(2000).
Therefore, the veteran is hereby placed on notice that
pursuant to 38 C.F.R. § 3.655 (2000) failure to cooperate by
attending the requested VA examination may result in an
adverse determination.
The law requires full compliance with all orders in this
remand. Stegall v. West, 11 Vet. App. 268 (1998). Although
the instructions in this remand should be carried out in a
logical chronological sequence, no instruction in this remand
may be given a lower order of priority in terms of the
necessity of carrying out the instructions completely.
Accordingly, this matter is Remanded for the following
action:
1. The veteran should be contacted and
asked to provide information as to any
sources of medical treatment he has
received for the service-connected right
axilla and for residuals, intra-orbital
foreign body, temporal base disabilities,
as well as for PTSD. In the event there
are private or VA records which are not
part of the file, these should be
obtained.
2. The veteran should be asked to
provide documentation from his employer
as to the amount of hours worked by him
on a weekly basis, and whether there are
any accommodations made to him on account
of PTSD, a right axilla disorder and/or
residuals, intra-orbital foreign body,
temporal base.
3. The veteran should be afforded a VA
examination to include orthopedic,
neurological, and visual evaluations to
determine the current nature, extent, and
manifestations of his service-connected
right axilla and service-connected
residuals, intra-orbital foreign body,
temporal base disabilities. All
indicated x-rays and laboratory tests
should be completed. The claims file, to
include all evidence added to the record
pursuant to this REMAND, should be made
available to the examiner(s) prior to the
examination(s).
The orthopedic examiner should opine as
to what residuals, if any, are present as
due to shell fragment wound of the right
axilla. The examiner should also
indicate if any scarring is tender or
painful upon objective demonstration.
The neurological examiner should opine as
to whether the veteran's shell fragment
wound of the right axilla has resulted in
any neurological impairment and, if so,
the extent thereof. An opinion is also
requested on the etiology of the
veteran's headaches and blurred vision,
and whether either or both of these are
due to residual disability due to intra-
orbital foreign body of the temporal
base.
The visual examiner should opine as to
what residuals, if any, are present due
to an intra-orbital foreign body of the
temporal base, to include whether the
intra-orbital foreign body of the
temporal base has resulted in headaches
and blurred vision.
4. The veteran should also be afforded
VA psychiatric examination so that the
extent of disability due to PTSD can be
adequately ascertained. The examiner
should elicit from the veteran all PTSD
symptoms and should determine their
impact on his daily functioning. The
findings of the examiner must address the
presence or absence of symptoms set forth
in the new criteria contained in the
rating schedule. All necessary special
studies or tests including psychological
testing and evaluation such as the
Minnesota Multiphasic Psychological
Inventory are to be accomplished. The
examiner should assign a numerical code
under the Global Assessment of
Functioning Scale (GAF) provided in the
Diagnostic and Statistical Manual for
Mental Disabilities. It is imperative
that the physician include a definition
of the numerical code assigned under that
manual in order to assist the RO and the
Board to comply with the requirements of
Thurber v. Brown, 5 Vet. App. 119 (1993).
The claims folder must be made available
to the examiner for review prior to the
examination.
5. The RO must review the claims file
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. For further guidance
on the processing of this case in light
of the changes in the law, the RO should
refer to VBA Fast Letter 00-87
(November 17, 2000), as well as any
pertinent formal or informal guidance
that is subsequently provided by the
Department, including, among others
things, final regulations and General
Counsel precedent opinions. Any binding
and pertinent court decisions that are
subsequently issued also should be
considered.
6. The RO should readjudicate the
veteran's claim for entitlement to higher
ratings for service-connected right
axilla disability and for residuals,
intra-orbital foreign body, temporal
base, taking into consideration all
applicable diagnostic codes. The RO
should also consider whether a rating
higher than 50 percent is warranted for
PTSD for the period beginning November 7,
1996, under the Diagnostic Codes in
effect before and after that date,
applying the most favorable to the
veteran.
7. In the event the veteran fails to
report for scheduled VA examination(s),
action should be taken under the
provisions of 38 C.F.R. § 3.655 (2000).
If any action taken is adverse to the
veteran, he and his representative should
be furnished a supplemental statement of
the case that contains a summary of the
relevant evidence and a citation and
discussion of the applicable laws and
regulations. He should also be afforded
the opportunity to respond to that
supplemental statement of the case before
the claim is returned to the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
N. R. ROBIN
Veterans Law Judge
Board of Veterans' Appeals
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